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Five Years AgoThis week in 2013, we learned that lots of government agencies were trying to access that sweet, sweet NSA data — and that the DEA was not only getting it, but being instructed to cover up where it came from. Some data even made it to the IRS, with the same instructions. Once all this was revealed, the DOJ decided it should perhaps be "reviewed", which was small comfort. Then, it was revealed that the NSA scans all emails in and out of the country, and we got a look at the loophole the NSA uses to claim authority to spy on Americans. It turned out this loophole was created on the same day that the FISA court smacked down the NSA for violating the fourth amendment — a ruling people were eager to see, and the DOJ agreed to release a redacted version.Ten Years AgoThis week in 2008, copyright expert William Patry shut down his excellent blog because covering copyright issues had become "too depressing". To see what he means, look at other events that very same week: the Jammie Thomas trial was turning into a huge mess, Blizzard was trying to block a bot-maker from open-sourcing his code, a fight between TorrentSpy and the MPAA was turning into a major privacy battle thanks to some email spying, and Uri Geller was suing someone for debunking his psychic claims using an eight-second copyrighted clip. Mac clone-maker Psystar, facing a major lawsuit from Apple, was fighting back with an antitrust claim, and a Sony executive was apparently so aware of the failings of legal offerings that he encouraged customers in Australia and New Zealand to pirate PSP games.Fifteen Years AgoThis week in 2003, people were beginning to dig deeper into just how spammers make money and discovering it doesn't require a lot of customer sales as long as you can keep selling lists of spam targets — and because of this chain of list sales, even well-known companies were profiting from spam. Of course, there also were at least some people buying penis enlargement pills, too. Meanwhile, both Red Hat and IBM were fighting back against SCO's IP lawsuits, while the RIAA was still fighting hard to get info on filesharing students and generally warring with the EFF. And in an example of how much free culture terrifies some people, when Creative Commons reached out to MP3.com about partnering to give artists the option of using CC licenses, the company angrily responded by not just declining but demanding CC "cease and desist" from contacting any artists on MP3.com.

The court system belongs to the people. That's what a "presumption of openness" means. It's a public system, accessed by the public or by representatives of the public. With rare exception, documents filed with the court system should be made available for viewing by the public.The FISA court, which oversees a multitude of surveillance programs and national security investigations is a closed book. Until very recently, it operated in total darkness, much like the agencies seeking its approval for surveillance. The Snowden leaks changed that, moving it very slightly closer to a presumption of openness.The Director of National Intelligence -- nodding towards transparency in a mostly self-serving way -- has begun to declassify orders and rulings from the FISC. But a majority of FISC documents released by the ODNI haven't come from this hesitant step towards transparency. They've been forced out the government's hands by numerous FOIA lawsuits.Access to court documents shouldn't have to be litigated, even in the FISA court. That's the argument being made by Georgetown professor Laura K. Donohue in her FISA court brief [PDF]. The long, very interesting brief covers a number of issues and government arguments, but it all boils down to public access as a presumption, rather than a grudging concession after a courtroom loss in a FOIA case.Her brief note the FISA court controls the documents submitted to it and the orders/opinions it issues. When it decides its subservient to surveillance agencies and their national security assertions, the system of checks and balances is thrown out of whack. That's what's happened over the 40 years the court has been in operation. Government agencies and a number of administrations have decided it does not have the discretion to handle the release of court documents.This is obviously wrong. Donohue's brief sets the stage with a dismantling of the government's opacity arguments -- all designed to override the court's inherent authority to control the release of court documents. [Paragraph breaks added for readability.]

Two Los Angeles Sheriff's Department deputies are hearing -- for the fourth time -- they'll be personally responsible for a string of Constitutional violations resulting in them filling two innocent people with bullets. At this point, the officers have lost at the district level, the Appeals Court, got a partial remand (but no grant of immunity) from the Supreme Court, and are back in front of the Ninth Circuit Court of Appeals losing again.Deputies Christopher Conley and Jennifer Pederson were searching for a parolee named Ronnie O'Dell. A department briefing claimed O'Dell lived in a one-room shack behind a home owned by Paula Hughes. O'Dell did not live there. Instead, the deputies found -- after entering the shack without announcing their presence or obtaining a warrant -- Angel Mendez and Jennifer Garcia. Mendez, who had been sleeping on a futon, started to move a BB gun off the bed (the BB gun was used to shoot pests) and set it on the floor so he could stand up. Deputy Conley shouted "Gun!" and the rest -- all fifteen bullets of it -- is tragic history.From the Ninth Circuit Appeals Court's second pass [PDF] at this case:

In 2015, the state of New Mexico overhauled its asset forfeiture program. The reform bill all but eliminated civil asset forfeiture by creating a conviction requirement. This eliminated roadside shopping trips by New Mexico law enforcement in which "perps" were free to go, so long as they left everything else (cash, vehicles) behind.Despite the passage of this law, the Albuquerque PD continued to engage in asset forfeiture on pre-reform terms. The especially aggressive program saw citizens losing their vehicles to law enforcement because of acts committed by other drivers and the PD seized cars by the dozens during DWI arrests. The PD was sued by state legislators for its continued violations of the new law while the law enforcement agency repeatedly claimed the legislation just didn't apply to it.The plaintiff in this case -- who has just received a ruling that may cause serious problems for asset forfeiture programs elsewhere in the nation -- had her vehicle forfeited by the Albuquerque PD after her son drove it drunk. A ruling in this case allowed Arlene Harjo's lawsuit against the city to proceed, and also resulted in the PD dropping its unlawful -- if not unconstitutional -- program.

When we talk about the scourge that is copyright troll operations, and the wide path of legal destruction they've caused throughout the world, it can be easy to lose sight of just how precarious a business model it can be for the trolls. Loathe as any writer should be to engage in cliche, it is simply true that the best response to shut down this kind of non-litigious bullying is to simply punch back. After all, it is quite clear at this point that the last thing these trolling operations want as a response to their lawsuit-threat letters is for any actual lawsuit to be conducted. More specific to this story is how Guardaley, the shady German company that appears to setup shell operations throughout the world and cultivate law firms to enforce its operations, all too often forgets to bring any actual evidence to the courtroom when it does show up there and which otherwise does everything it can to stay out of the courtroom altogether.Again, bullies will tend to back down when you fight back against them. But backing down doesn't have to be the end of the story, as demonstrated by one Utah man that received a copyright trolling threat letter from an outfit called Criminal Productions (super on the nose, there, guys...), immediately lawyered up, and demanded that discovery begin.

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A few months ago, we wrote about (YET ANOTHER) terrible law Louisiana has on the books. Like its other terrible laws, this one is abused by law enforcement. The law itself -- which forbids the "intimidation" of public officials -- has already been ruled unconstitutional by a federal judge.This law is wielded by officers and prosecutors to ring people up for "intimidating" cops by doing things like threatening to sue or file complaints. The wording lends itself to this. It criminalizes anything that might "influence" a public official's "conduct." No doubt threats of lawsuits or complaints have some effect on officers and how they behave and react. The most noticeable effect isn't on the public officials. It's the addition of a charge specifically related to what a citizen says to a law enforcement officer if they're unhappy with the way they're being treated.Travis Seals was the recipient of one of these bogus charges as the result of him informing an officer he was going to file "lawful complaints" during his arrest for unknown charges. (The opinion only says "conduct not specifically reflected in the record.") He verbally objected to the arrest, which apparently led to the application of pepper spray and Seals' announcement of the pending filing of complaints.The lower court said the law was unconstitutional. Even though Seals was never officially charged by the DA, the DA still chose to fight for the bad law in court. And again, it's the state appealing the lower court's ruling. The state tried to get the case tossed for lack of standing, saying it had promised not to use that law against Seals in the future. The court disagrees, using a couple of footnotes (p. 5) to explain why this promise isn't really worth the PDF it's printed on before ruling on the law itself. It also points out the state has brought this charge in circumstances like these against 150 people, so it's not as though it's restraining itself for abusing a bad, broadly-written law.And it is incredibly broad, as the Fifth Circuit Appeals Court points out in its opinion [PDF]. (h/t Volokh Conspiracy)

Comcast has been dinged for a third significant website privacy vulnerability in almost as many months. Back in May, a bug in Comcast's website used to activate the company's Xfinity-branded routers opened the door to letting attackers trick the website into displaying the home address where the router is located, as well as the Wi-Fi name and password. Then last June, security researchers discovered that an API used by Comcast could be tricked into returning a swath of private customer data, including account numbers, a user's account address, and numerous details about a user's account, including what services are subscribed to.Comcast's now back in the news again, with BuzzFeed reporting that yet another security flaw in Comcast's website has potentially exposed customer information. Security researcher Ryan Stevenson (who also discovered the previous two vulnerabilities) found that two new, previously-unreported vulnerabilities exposed the the partial home addresses and Social Security numbers of more than 26.5 million Comcast customers.One of the flaws let an attacker exploit an "in home authentication" portal set up by Comcast that let customers pay their bills without logging in. The portal asked users to verify their identity by showing them partial snippets of four potential home addresses. While this was designed to be convenient, it opened the door to a potential hacker spoofing a Comcast user's IP address to obtain sensitive data. Once alerted, Comcast fixed the vulnerability and required that users enter their cable and broadband credentials to pay their bills.The other flaw was potentially more damning, since it exposed the last four digits of Comcast users' social security numbers:

More news comes from the Boston Globe about the TSA's "Quiet Skies" program. Having decided the skies were too quiet, the TSA started nominating people for surveillance based on god knows what and sent air marshals all over the US to tail "suspects" as they unsuspectingly went about their travels. Some of the targets included flight attendants and law enforcement officers. To those tasked with this futile (and likely unconstitutional) surveillance, the program is a waste of time and resources, if not a full-blown civil liberties catastrophe.To the TSA, this previously-hidden bullshit is just some more discretion-flexing on behalf of the American public to save them from terrorists it inadvertently admitted aren't even targeting aircraft anymore. Why go through the hassle of the boarding process, smuggling precursors past half-inept, half-asleep TSA agents when you can just rent a van from Home Depot and drive it into a crowd?The TSA insists the program has value and that it will continue to send air marshals out to tail flagged randos. It also insists better education of air marshals will shut complaining marshals the hell up. But what it failed to do in a Congressional hearing, called after the Globe's expose, is actually present any evidence the program works.

On the matter of trademark bullying, we typically talk about these cases as matters of legal outcomes and courtroom repercussions. Less discussed is the power of the masses in the form of protest and public shaming in order to combat trademark bullies. And, yet, that appears to be part of the equation trying to solve the irritation that is Aloha Poke Co.'s trademark bullying of actual Hawaiian poke joints out of their own culture.You will recall that we recently discussed Aloha Poke Co., the Chicago-based poke chain that doesn't count any actual Hawaiians among its founders, firing off cease and desist letters to all manner of other joints that use some version of "Aloha" and "Poke" in their names. Most of these other entities are owned and operated by actual Hawaiians, from which both words and their cultural relevance stems. With so many entities out there using what are fairly generic terms in the realm of anything Hawaiian, the suggestion for public confusion made by Aloha Poke Co. seems spurious at best. Perhaps as importantly, if the company thought that the public wouldn't get wind of its bullying, it appears that it was very, very wrong, as protests at its Chicago headquarters have been organized.

As you may recall, we've been working on a big fun project called Working Futures that mixes scenario planning and science fiction to start thinking about what the future of work might really look like. We've had a lot going on behind the scenes on that project, so expect more in the future. But, for now, we're also pitching a panel at SXSW next year on this topic entitled: Science Fiction Dreams of Electric Jobs, in which myself and Berit Anderson from the sci-fi/scenario planning company Scout.ai would be joined by two incredible science fiction writers, who have both worked in tech for years, and who are brilliant and insightful, Nicky Drayden and Ramez Naam, to discuss this topic and maybe do a little live scenario planning as well.But the way SXSW works (if you don't know) is that part of determining if your panel is accepted is that all the panels that make it past the first level of review then are put up on SXSW's "Panel Picker" platform for people to vote on over the next couple of weeks (voting closes on August 30th). The voting doesn't fully determine what makes it (I believe it only accounts for about 30% of the decision), but obviously it does help. So if you think this would be a good panel at SXSW, please head over and vote (and... if you think it would be an awful panel, you should go vote for some of the other stuff, much of which looks pretty awesome as well).

Sinclair Broadcast Group's $3.9 billion merger with Tribune Media has reached an inauspicious end. Tribune has formally announced that it's not only terminating the planned merger, but will be filing a lawsuit (pdf) against Sinclair for what the company states was an "unnecessarily aggressive" sales pitch to FCC regulators and the DOJ. According to Tribune, it's hoping to recoup its losses and "hold Sinclair accountable" for causing the companies' controversial merger to implode:

Eugene Volokh has tracked down another questionable defamation court order targeting Google with a delisting demand. The plaintiff doesn't appear to be abusing the legal process -- he may not understand the request the judge granted is unconstitutional -- but the whole thing seems more than a little weird.

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Warning 1: I'm about to talk about an issue that has a lot of nuance in it and no clear "good" answers -- and it's also one that many people have already made up their minds on one way or the other, and both sides will probably not really like at least part of what I have to say. That's cool. You get to live your own life. But, at the very least, I hope people can acknowledge that sometimes issues are more complex than they appear and having a nuanced discussion can be helpful, and I hope people can appreciate that.Warning 2: This is a long post, so I'm going to provide a TLDR at the top (right under this, in fact), but as noted above, a part of the reason it's long is because it's a complex issue and there's a lot of nuance. So I strongly advise that if your initial response to my TLDR version is "fuck you, you're so wrong because..." maybe try reading the whole post first, and then when you go down to the comments to write out "fuck you, you're so wrong..." you can explain yourself clearly and thoroughly and address the actual points in the post. Thanks!TLDR: Internet sites have every right in the world to kick people off their platforms, and there's no legal or ethical problem with that. No one's free speech is being censored. That said, we should be at least a bit concerned about the idea that giant internet platforms get to be some sort of arbiter of what speech is okay and what speech is not, and how that can impact society more generally. But there are possible solutions to this, even if none are perfect and some may be difficult to implement, and we should explore those more thoroughly, rather than getting into screaming fights over who should or shouldn't be allowed to use various internet platforms.So, this post was originally going to be about the choices that Facebook and other internet platforms make concerning who is allowed on their platforms, specifically in response to an interview that Mark Zuckerberg gave back in July, in which he noted that he didn't think Facebook should remove Holocaust deniers from its platform, saying:

As we've noted for a while, a VPN isn't some kind of magic bullet. While it might help you hide some of your online activity from snoopy governments, nosy ISPs, or a packet sniffing dudebro at the coffee shop, it's not some mystical panacea. Unfortunately, in the wake of seemingly endless privacy scandals and a federal apathy to any meaningful privacy rules of the road, many people have been flocking to VPNs without understanding that many VPNs are scams, poorly configured (making you less secure, not more), and that promises made about data retention are often hollow.Ironically, many of the companies most responsible for our privacy problems have now jumped into the VPN business to capitalize on consumer worries they themselves helped create. Like Facebook, which, in the shadow of the Cambridge Analytica scandal, thought it might be a good idea to launch a VPN that pretends to protect consumers from online harm, but actually exists solely to track your behavior online when you're not visiting Facebook.Verizon, fresh off of its successful efforts to kill net neutrality and FCC broadband privacy protections, also recently launched a new VPN service dubbed Safe WiFi. Safe WiFi, you'll be happy to learn, "protects your privacy and blocks ad-tracking." But when I began digging into Verizon's VPN for Motherboard, I found that the company had rushed the service to market so quickly, it failed to even write an actual privacy policy for the service. Instead, the company informed me it had simply copied a placeholder privacy policy lifted from McAfee, the company that actually built its VPN. According to this privacy policy, Verizon's VPN collects, well, pretty much everything:

A redaction failure by a public entity has led to a request for contempt charges to be brought against a Florida newspaper and two of its reporters. The Sun Sentinel obtained a copy of the Broward County School Board's report on the Parkland shooter after a successful public records request lawsuit. The report was heavily redacted… or at least, it was supposed to be. But the school board screwed this task up.

Back in May, we wrote about the bizarre attempt by the Internet Corporation for Assigned Names and Numbers (ICANN) to exempt itself from the EU's new privacy legislation, the GDPR. ICANN sought an injunction to force EPAG, a Tucows-owned registrar based in Bonn, Germany, to collect administrative and technical contacts as part of the domain name registration process. EPAG had refused, because it felt doing so would fall foul of the GDPR. A German court turned down ICANN's request, but without addressing the question whether gathering that information would breach the GDPR.As the organization's timeline of the case indicates, ICANN then appealed to the Higher Regional Court of Cologne, Germany, against the ruling. Meanwhile, the lower court that issued the original judgment decided to re-visit the case, which it has the option to do upon receipt of an appeal. However, it did not change its view, and referred the matter to the upper Court. The Appellate Court of Cologne has issued its judgment (pdf), with a comprehensive smackdown of ICANN, yet again (via The Register):

A man convicted for fraud makes his second appearance in the Fourth Circuit Appeals Court. The first was an attempt to have his sentence vacated via complaints of prosecutorial misconduct. Gregory Bartko not only discovered a government witness had perjured himself, but during his trial, the prosecution routinely delayed its production of evidence -- something the district court noticed. It didn't result in a new trial, but it did bring judicial hellfire down on the heads of the prosecution team.The Fourth Circuit's 2013 decision doesn't pull punches.

A grand jury will indict a ham sandwich.The corollary, of course, is "if that's what the prosecutor wants." And prosecutors rarely want their ham sandwiches indicted.An unarmed man shot in the stomach by Officer Sarah Stumler of the Louisville Metro Police recently discovered the corollaries of this truism still hold, even if the city is giving the victim $1.8 million in taxpayer cash to settle his lawsuit.There's another lawsuit underway over the killing of Ismael Lopez by a Mississippi police officer. The Southaven Police Department obtained a warrant but went to the wrong address, shot at Lopez's dogs, and apparently shot him after encountering him carrying a gun. The link between these is the failure to process the ham.

So we've kind of been over this. For more than two decades now we've pointed out that electronic voting is neither private nor secure. We've also noted that despite this several-decade long conversation, many of the vendors pushing this solution are still astonishingly-bad at not only securing their products, but acknowledging that nearly every reputable security analyst and expert has warned that it's impossible to build a secure fully electronic voting system, and that if you're going to to do so anyway, at the very least you need to include a paper trail system that's not accessible via the internet.Having apparently learned nothing, reports emerged this week that West Virginia is considering launching an initiative that would let some state residents vote via cellphone. To be clear, the effort initially appears focused on letting troops stationed overseas vote. Not surprisingly, more than a few folks were quick to highlight to CNN how this would be an arguably terrible idea:

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Check out our new list of all the ways you can support Techdirt »Let's get a few things out of the way first: we are rarely aggressive in asking for support on Techdirt. Many other sites do complete takeovers or popups or have pleas for funding that take up half the screen. We don't do that. However, every so often we do remind folks that we need support to keep running -- so today I'm going to do that with what is hopefully an interesting story and a discussion on the kinds of things we won't do for money.If you haven't yet heard it, I want to recommend a recent episode of the Reply All podcast entitled An Ad for the Worst Day of Your Life. It is quite an amazing story involving a guy whose wife died suddenly and unexpectedly a day after their daughter was born. That happened back in 2008, and the guy, Matt, was quite understandably distraught. He began blogging about his life as a widower and single father. The blog caught on and got more and more attention. Eventually, Matt decided the blog was no longer necessary, pulled it down, and moved on with his life.Then, this year, just as he was about to get remarried, he suddenly started seeing ads with a giant picture of him -- and his dead wife. Those ads were showing up everywhere, thanks to the various sites that include awful units full of "Stories From Around the Web" or "Stuff You May Have Missed" or whatever. You know what they look like. They're always filled with the worst kind of clickbait crap imaginable. "Whatever happened to..." "Eat this if you want to live longer..." That kind of stuff. Here, I just randomly opened up a story on Google News, scrolled to the bottom and got this example:They're all over the damn place -- and many publishers love them, because they pay a lot more than just about any other ads. The Reply All episode calls these "Chumboxes" -- a term I'd not heard before -- and then goes through the process of figuring out how Matt's picture kept showing up in them. It's convoluted, but involves content farms playing a weird arbitrage game of writing clickbait stories and then trying to attract traffic to sell their own ads. A story about a dead wife gets clicks. And that generates more fake stories about Matt and his wife and more ads and more clicks. It's a huge mess of crap, but it pays incredibly well.The two major companies who provide these things are Outbrain and Taboola. And they're big. There are a few other smaller operations, but Outbrain and Taboola are the main ones. Outbrain has raised nearly $200 million and bought up many of its smaller competitors. Taboola has raised $160 million.Here's the thing: Taboola, specifically, has been after us to put these ads on our site for years. We told them no, and they kept coming back. We told them no again and explained that we think those ads are crap and are an insult to our readers (because they are). And the company said, "No, we have quality filters and we promise it'll show good ads." Eventually we said we'd take a look and ran a test with our content using their "quality filters." And, guess what? The ads were still awful crap that would be insulting to you. So we told Taboola no. But they don't let up. Every few weeks we get another request from Taboola. They email. They try to friend us on Linkedin. They try to friend us on Facebook. And we keep saying no.Because, despite what some trolls will say about us doing anything that will get clicks or money, we have no desire for short term revenue that fucks over our community. Because we actually value you guys (even some of our critics). Using crappy services like Taboola and Outbrain shows a lack of trust and lack of respect for your community. It shows a level of short-term money-grab thinking that is insulting and disrespectful. And that's too bad, because the concept behind Taboola and Outbrain could be good. If we could use a service like that which would actually take you to good and relevant information around the web, and get us paid at the same time, that would be great. Indeed, seven or eight years ago we partnered with a company that promised that. And then, a month later, they said they were no longer doing that and wanted us to do sketchy stuff. And we no longer work with that company.We've talked before about how traditional banner ads -- the kinds from Google AdSense, for example -- have become next to useless over the last few years. The rates keep dropping to the point that they're barely worth including at all. In fact, we're exploring some new advertising programs that respect our community by not including any tracking technology at all, so if you happen to work for a company that wants to advertise in a respectful manner, please contact us.All of that is to say: we try to respect the community here, even at the expense of revenue. And that sometimes makes things quite difficult. So we need to rely on you, our community, more and more. We try to be as respectful as possible. We don't put up paywalls. We don't complain if you use ad blockers. Hell, we let you turn off the ads on the site. But we also sometimes need to ask for support, and we've tried to make it possible to support us in many, many, different ways. We've now put up a page that lists out all the ways you can support us, from becoming an Insider (the easiest and most direct way to support us -- and we're working on some fun updates to that program), to backing us on Patreon, to buying one of our many t-shirt designs (more coming soon) to buying products from our deals store, from which receive a commission. We also have a partnership with Private Internet Access if you're looking for a VPN.We're also just now launching a new job board in partnership with ZipRecruiter, and if you're looking to hire someone and post a job there, it helps support us as well (also, if you're looking for a tech job, go check it out).Our goal, as always, is to build and support this community -- but it does take some money to keep things going. We know that not everyone can support us monetarily and we do our absolute best to make the site and community work for everyone, without being annoying or intrusive. But that does mean that every once in a while we may need to remind you that we need your support and explain the way we think about these things.

You might recall that when HBO comedian John Oliver originally tackled net neutrality on his show in 2014, the FCC website crashed under the load of concerned consumers eager to support the creation of net neutrality rules. When Oliver revisited the topic last May to discuss FCC boss Ajit Pai's myopic plan to kill those same rules, the FCC website crashed under the load a second time. That's not a particular shock; given the massive public opposition to the repeal, and an FCC website that's never been accused of being cutting edge.But things then got a bit weird. After the second attack last year, since-departed FCC Chief Information Officer David Bray issued a statement (pdf) claiming that FCC analysis showed the FCC had been the target of a DDOS attack by "external actors":

Well, this is awkward.

We've featured a number of stories here about entities attempting to pass off video game footage as something in real life. On the one hand, since these stories usually feature governments doing this in a pretty bald-faced attempt at trickery, and since these attempts at trickery typically have something to do with the realm of war, it's easy to take a negative view of the whole thing entirely. On the other hand, it's hard to escape the notion that our video games have gotten so realistic so as to be able to fool large swaths of people into thinking they are depictions of the real thing, which is pretty damned cool.And, yet, even when the use of game footage is more innocuous, it still seems to get people's fur up. In the UK, one housing developer was caught using a screenshot from Cities: Skylines, a city-building game, in its pitch material for a housing project.

Law enforcement officers have no duty to protect citizens. So many offer up "protect and serve" as a credo, but the Supreme Court ruled cops have no obligation to uphold the first half of that saying and law enforcement agencies have made it pretty clear the second half isn't going to be getting much attention either.While officers may have no obligation to protect citizens, they do have to ensure they don't make things worse for those they're serving. The line isn't drawn especially clearly, but if you're policing the denizens of a frying pan, you definitely shouldn't push them into the fire. (h/t Volokh Conspiracy)The frying pan in this Ninth Circuit Appeals Court decision [PDF] was a June 2016 Trump rally held in San Jose, California. The fire was the anti-Trump protesters gathered outside the arena. Aware that Trump rallies tended to produce violent clashes (of ideologies, but mainly fists and other thrown objects), 250 officers were sent to patrol the scene.Things started to go badly quickly. According to the plaintiffs, the city instructed officers to stand back and let pro- and anti-Trump forces work it out between themselves. The rationale? "Intervention might cause a riot." There is some pragmatism to this statement, but not a whole lot of wisdom. Either way, it does clearly show the city understands officers have no duty to protect. If beatings were going to occur on their watch, they weren't going to jump in the middle of it and possibly become part of the problem.But it was clear to officers anti-Trump protests tended to include violent acts directed at pro-Trump rally attendees. It was even more clear in this case, as officers witnessed violent acts (or had acts reported to them) but refused to intervene. In fact, the 250 officers racked up only three arrests between them -- and every one of those included an "assaulting an officer" charge.The only time the officers appeared to step up was to "assist" pro-Trump rally attendees make their way out of the arena… and directly into the crowd of violent protesters.

The tides of public opinion on economics seem to be shifting, and criticism of the very idea of free markets is on the rise. The conversation is messy, confusing, and transcends many traditional political boundaries — so we've got an expert source to help us dig in. EconTalk host Russ Roberts joins us to look at why so many people don't trust capitalism anymore.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Well shucks, it only seems like yesterday that Wells Fargo first found itself under fire for a cavalcade of fraudulent behavior.First, the company was busted for creating 2 million unwanted accounts to saddle users with fees in order to meet quarterly numbers. From there, the company was subsequently caught hitting 110,000 customers with inaccurate "mortgage rate lock extension fees" to prevent them from being able to lock in better interest rates. Wells Fargo wagon was then caught forcing more than half a million customers into signing up for auto insurance they didn't need, resulting in a number of those users defaulting on their loans or having their vehicles repossessed due to unnecessary added costs.Apparently undaunted by the recently proposed $2.1 billion fine for the mortgage snafu alone, the company this week is making headlines once again. This time, Wells Fargo is under fire for hundreds of customers losing their homes due to an apparent computer glitch. According to the filing, the glitch was found in a mortgage loan modification underwriting tool and resulted in about 625 customers being "incorrectly denied" a loan modification, in turn resulting in about 400 of them being forclosed upon:

There are plenty of things to be concerned about regarding Facebook these days, and I'm sure we'll be discussing them for years to come, but the Knight First Amendment Center is asking Facebook to make a very important change as soon as possible: creating a safe harbor for journalists who are researching public interest stories on the platform. Specifically, the concern is that basic tools used for reporting likely violate Facebook's terms of service, and could lead to Facebook being able to go after reporters for CFAA violations for violating its terms. From the letter:

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Earlier this year, we wrote about a thought-provoking article by Zeynep Tufecki discussing how some people were deliberately trying to use the open "marketplace of ideas" to effectively attempt to poison the marketplace of ideas. Also mentioned in that article was an excellent Yale Journal Article called Real Talk About Fake News by Nabiha Syed, which raised similar issues, and wondered if we needed a new framework for thinking about free speech online. We later had Syed on our podcast to discuss this further. Both Tufecki and Syed were raising important, thought-provoking issues that were not at all like the usual attacks on free speech -- because neither was an attack on free speech. Instead, they were attempting to protect free speech by pointing out that the way we often frame these discussions may not be the most effective way of thinking about these issues -- and that might actually lead to the silencing of voices.This has certainly spurred many more thoughtful discussions on these topics. But... it won't surprise you that some are now looking to exploit this open discussion in their own way. The MPAA recently filed some comments with the NTIA, and what's striking about them, is how they appear to be co-opting the language of Tufecki to attack free speech online, and push for legal changes that would lead to massive censorship. But, in doing so, they claim these changes are necessary to "protect" free speech. The MPAA's VP Neil Fried also put out a somewhat snarky blog post about the filing, in which the MPAA insists that CDA 230 and DMCA 512 must be changed because "the status quo does not seem to be working."Is that so? CDA 230 became law in 1996. DMCA in 1998. Let's take a look at how movie box office revenue has been over the years since (2018 numbers are projected based on tickets so far):I don't know, Neil, but it sure looks like Hollywood is doing just fine under these conditions. But, the MPAA has basically invested so much of its identity into the idea that infringement is an existential threat, that it has to keep going with it. Remember, this is the same organization that insisted the VCR was going to be "the Boston Strangler" to the movie industry -- and that was said in Congressional testimony just four years before home video revenue surpassed box office revenue. So, the MPAA does not exactly have a credible track record on claiming that the threat of piracy is a real problem for the industry. But, it just can't let things go.So now it's trying again with this comment to NTIA. And I find it notable that it appears to be trying to co-opt the framing that Tufecki used in order to argue for a regime that would stamp out free speech online:

So you'll recall that before Comcast, AT&T, Verizon and friends convinced the Trump FCC to ignore the public and kill net neutrality, they had attempted to dismantle the rules legally. That effort didn't go very well, with the U.S. Court of Appeals for the D.C. Circuit upholding the FCC's Open Internet Order in June of 2016, and ISPs losing a subsequent en banc appeal. More specifically, the courts found that the former Wheeler-run FCC was well within its legal right to reclassify ISPs as common carriers under the Telecom Act.The 2016 FCC victory made sense, especially if you recall that the agency lost its 2014 legal fight with Verizon in part because it tried to implement net neutrality without first putting itself on legal footing by classifying ISPs as common carriers under Title II. You might also recall that Wheeler at the time initially wasn't sure about the Title II route, but changed his mind based on available facts and evidence, back when people, you know, actually still did that.But that was then and this is now. Lawyers for the FCC and Department of Justice filed a brief (pdf) with the Supreme Court last Friday, urging it to vacate the 2016 court ruling that upheld the Wheeler-era net neutrality rules. The move is necessary, FCC lawyers inform the court, because of the FCC's new, comically-named "Restoring Internet Freedom" proposal has purportedly changed the facts on the ground:

American tech companies don't want to give up their cut of a $20 billion Russian software/hardware market, so they've been allowing purchasers to examine devices and vet source code before shelling out for new products. This isn't exactly ideal for American companies, but Russia is as concerned as anyone else products might be shipping with adversaries' backdoors pre-installed. American companies don't necessarily like having entities linked to Russia's government vetting source code, but the market is too big to be ignored.Russia has every right to suspect government backdoors may be unlisted features. Checking products and source code before purchase just makes sense, what with leaked documents showing the NSA intercepts foreign-bound hardware to install backdoors and other leaks exposing a fair bit of the agency's exploit collection. But now that Russia appears to have engaged in cyberwarfare efforts during the 2016 election, legislators are demanding US companies let the US government know who's been poking around in their products.

The theory that piracy enforcement is a far inferior method for combating copyright infringement when compared with better and innovative business models and offerings is certainly old hat for us here. And, while there have certainly been studies going back years showing that to be the case, it seems notable that the past few months have seen a wave of these studies all coming on top of each other. We had MUSO, of all organizations, essentially concluding a survey it did in the UK showing how much content "pirates" actually buy legitimately by saying, "Hey, content industries, get your shit together!" That was followed quite recently by a study performed by Dutch researchers that did an amazing and large-sampled survey that concluded quite clearly that user-friendly legal alternatives depressed piracy rates at a far greater clip than enforcement measures.And, now, because good things always come in threes, yet another study in the UK has shown that once-pirates of music are morphing into very real customers due to convenient and user-friendly streaming services.

Here at Techdirt we've been slow to switch: so dug in were we for so long against the legislative scourge known as SESTA that we've been reluctant to call it anything else. Even after its ghastly provisions became law – in some ways, because its ghastly provisions became law – we've been reluctant to change what we called this vehicle of censoring doom. After all, we said for months that SESTA would be awful, and now here it is, being awful. If we called it something else people might be confused about what we had been complaining about.The problem is, it's not technically correct to continue to call this legislative outrage SESTA, and doing so threatens to create its own confusion. SESTA didn't become law; FOSTA did. When we react to those legislative changes, and cite to their source, we are citing to the bill called FOSTA, not the bill called SESTA. SESTA itself no longer exists in legislative form – FOSTA's enactment mooted it – and it's confusing to complain about a law that isn't actually one, or ever going to be one, because even if you can convince someone that it's terrible, they'll never be able to find in any law book what it is they should be upset about.It's FOSTA that now haunts us from the U.S. Code. But what's confusing is that while FOSTA is the enacted legislation now hurting us, SESTA was the proposed bill we had warned would. All the legislative history is with SESTA (well, most of it anyway), but all the legislative power is with FOSTA.So what happened? What's up with the two names? Why the shift? Basically this:SESTA was a terrible bill proposing to gut Section 230 that had been rumbling around the Senate for a while. There were some hearings and proposed amendments, but by and large it remained a bill full of terrible, Internet-ruining proposals. Eventually, when it looked like it might be picking up enough steam to pass, an alternate bill got floated in the House: FOSTA. It still played SESTA's game, but it did so with different language that presumably would have resulted in something less Internet-ruining.For what it's worth, not everyone thought this was a great strategy. Some thought that it would be better to do nothing but try to nip the whole idea behind SESTA in the bud, but others thought it might be better to go with a "devil you know" strategy if passage of something seemed inevitable, because then hopefully it could at least be something a little less awful.FOSTA was still pretty bad, although it had some hearings and amendments to try to make it less so. But then, all of a sudden, the legislative sausage-making machine went berserk and spit out something even worse. The result was a Frankenstein monster of a bill, still called FOSTA, which combined the worst of its own proposals with the worst of the SESTA bill percolating in the Senate. This new FOSTA bill soon passed the House, and shortly thereafter it's the bill that passed the Senate. Notably it was not the original SESTA bill that the Senate voted on, because if the Senate had tried to pass anything different from what the House had passed the reconciliation process between the two bills might have delayed the ultimate passage of either. Perhaps that delay would have spared us this horror, but such a fate was not something the law's Internet-undermining champions wanted to risk.So here we are, stuck with this garbage on the books, legislation so awful it can't even be labeled coherently. But giving name to something always makes it easier to fight. So from here on out, we'll be calling it FOSTA.

Move to HTTPS; lose the Chinese. That's the revised internet maxim. China's Great Firewall has gradually reduced the number of foreign sites accessible by Chinese citizens... "gradually" only in the sense that it's been a continuous rollout steadily decreasing web access. The government blocked an entire content delivery network at one point, so even this gradual rollout has seen its share of spikes.As is being collaboratively reported at WikiTribune, the BBC says the move to HTTPS for all of it properties has resulted in Chinese citizens being unable to access their contents.

A small but significant win for transparency has been obtained by the EFF. As we're all well aware, the federal courts often seem to be at odds with the First Amendment they're supposed to be upholding by allowing plaintiffs -- especially the government -- to seal filings, if not entire dockets, with alarming regularity.Lots of these are tied to the government's law enforcement work. But some of it has to do with disputes over intellectual property the public already has access to. Patent cases see an inordinate amount of document sealing, taking a lot of the "public" out of "public court system." There's a presumption of openness that's supposed to apply across the board. The government gets around this by making claims about national security or law enforcement means/methods. But in patent cases -- where the underlying patents are already accessible to the public via the USPTO's website -- the Patent Trial and Appeal Board's (PTAB) frequently allows filings to be sealed.Making things even more opaque (if only temporarily), the Federal Circuit (which presides over the PTAB) has been delaying the public release of documents for several days, despite all courts relying heavily on an electronic filing system. This isn't just a problem for members of the public who expect filings to appear in a timely fashion. It's also a problem for litigants, as the EFF points out:

Finally, the TSA is considering making a smart move. After years of reacting to each attempted terrorist attack by creating another set of forbidden items based on the attack it failed to prevent, the TSA is thinking about moving away from defeatist arbitrage and towards making flying slightly more tolerable.

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Since publishing the urine-soaked "Steele Dossier," BuzzFeed has been targeted with multiple defamation lawsuits. Trump's former lawyer, Michael Cohen, ultimately dropped his lawsuit against the website after his own legal problems pretty much demanded he focus his legal attention elsewhere. Oh, and it was a lawsuit he was likely to lose, what with a lot of the alleged defamation being factual statements and any remaining defamation having been penned by the author of the dossier, not BuzzFeed itself.Another doomed lawsuit is still active -- this one brought by Aleksej Gubarev and a couple of his companies (XBT Holdings and Webzilla, Inc.). Gubarev claims the next-to-last paragraph of the Steele Dossier defames him and his by linking Gubarv to Russian hacking attempts targeting the Democratic National Committee.This lawsuit is likely doomed to fail as well, what with the alleged defamation having been penned by Steele, not BuzzFeed. But while it rolls towards this seemingly inevitable conclusion, the process continues with the subpoenaing of witnesses for both sides. BuzzFeed wants to depose people with knowledge of the events depicted in the dossier -- high-powered people like former FBI Director James Comey and other DOJ/FBI officials.As Eriq Gardner notes on Twitter, this request has actually been granted, which is kind of a big deal.

So we've made it pretty clear for a long while that United States broadband ranges somewhere between mediocre and terrible thanks to the one-two punch of cash-compromised lawmakers/regulators and a lack of real broadband competition. We've also noted for a while how despite all the hype about limited gigabit broadband deployments and next-gen wireless (5G), the problem is actually getting worse in numerous markets.In countless areas (usually the ones where poorer people live), incumbent telcos have effectively given up on broadband because it's not profitable enough, quickly enough for Wall Street's liking. As a result, telcos are refusing to upgrade aging DSL lines at any real scale, leaving cable with a bigger monopoly over broadband in countless markets country wide. That monopoly in turn lets cable broadband providers double down on all manner of bad behavior, be it comically bad customer service, privacy and net neutrality violations, or arbitrary and anti-competitive usage caps and overage fees.A new report (pdf) by the Institute For Local Self-Reliance once again drives this point home, noting how the nation's telcos have all but given up on broadband investment outside of semi-competitive markets, leaving vast swaths of territories with "broadband" that can't even meet the FCC's 25 Mbps down, 4 Mbps up definition. But because the country's broadband maps are fundamentally terrible, telcos are routinely allowed to falsely over-state actual availability.The report leans heavily on the form 477 data ISPs submit to the FCC. We've long noted how this data isn't particularly accurate already, and ISP lobbyists have routinely fought efforts to improve broadband mapping. In large part because a more accurate picture of the market would make it harder for Comcast and friends to pretend U.S. broadband isn't a broken market punctuated by regional monopolies with an active disdain for their user bases. As such, the group is quick to highlight how things are notably worse than the FCC's data actually suggests:

Three years ago we released our Carrot or the Stick? paper, in which we explored piracy rates in a bunch of different countries, and looked at what appeared to be most effective in reducing piracy: greater legal enforcement or innovative new services. Time and time again our research highlighted how it was innovation -- in the form of user friendly licensed services (the user friendly part is important...) would lead to a noticeable reduction in piracy (sometimes in dramatic ways). On the other hand, increased legal enforcement appeared to have (if anything) only a temporary effect.It appears that others are now exploring the same area, and doing quite an incredible job with it. A group of Dutch researchers at the Institute for Information Law at the University of Amsterdam have just released a Global Online Piracy Study that does an incredible job looking at the same questions with even more thorough data and analysis. They surveyed 35,000 people and looked at situations in 13 different countries (larger than our sample). The conclusions of the report appear notably similar to our own research, which is great to see (as it certainly helps to confirm what we found):

This week, our first place winner on the insightful side is an anonymous commenter offering up a hands-on perspective on Mark Warner's proposed internet platform regulation:

Five Years AgoThis week in 2013, between Keith Alexander joking about how he has the number of congressional reps and the Senate being very unimpressed with James Clapper's evasiveness, it appeared the tide in congress was turning against the NSA — as was public opinion. Of course, the congressional reps who voted in favor of NSA surveillance had one obvious thing in common: they received twice as much money from the defense industry.Meanwhile, as congress ironically considered declaring national whistleblower day, Bradley Manning was convicted (but acquitted of the aiding the enemy charge) in a verdict that we knew would have massive chilling effects. But of course, cable news only granted this five minutes of coverage on average.Ten Years AgoThis week in 2008, one final ruling confirmed that the RIAA had to pay legal fees in one of its misdirected file sharing lawsuits, while the IFPI was halfheartedly apologizing for taking down a song from a blog that the artist wanted up, and ISPs in the UK were acting as copyright cops. Another of the RIAA's targets stood up to challenge the constitutionality of the Copyright Act itself in an interesting but ill-fated defense. And the MPAA, while cluelessly claiming that The Dark Knight owed its success to anti-piracy efforts, sued to sites and raised the critical question of whether embedding is infringement.Fifteen Years AgoFive years earlier in 2003, one senator was launching an inquiry into the RIAA's legal practices, while the organization itself was getting a new leader. We took on the myth that copying is theft, and the misguided industry focus on "replacing" CD sales with legal downloads — which wasn't going to happen, but that wasn't the point. People did know about legal download services of course — but one study showed they didn't care, much like how teenagers were losing interest in going to the movies.

One of the more curious fronts in the never ending copyright wars is the one launched against fan-made subtitles. The theory from the entertainment industry goes something like this: these subtitles allow pirates to download movies in foreign countries and then apply the subtitles to view them coherently, therefore it's all copyright infringement. It's a dumb argument on many levels, but chiefly because it's inescapably true that the entertainment industry has done an absolutely terrible job of making sure it releases its own subtitled movies in these same countries and in these same languages. In other words, the entertainment industry isn't going to serve you foreigners, and we're not going to let anyone else serve you either. To date, much of this front of the war has been fought in Europe.But now it's poised to make landfall in Australia, where a site-blocking request lobbed by a group of entertainment industry players has, for the first time, included fansub sites.

In the last few months, we've seen a fairly astounding amount of idiotic grandstanding from both parties in Congress, basically trying to out stupid themselves in attacking internet companies. On the Democratic side, they've been peddling incomprehensible nonsense about how internet companies have to stop bad information from spreading (and also some misleading claims about antitrust). On the Republican side, they keep dragging internet companies up to Capitol Hill and making ridiculous and blatantly misleading claims about how they're "censoring" conservatives, which is a bunch of utter nonsense.And here's the thing: most of the politicians spewing this stuff know it's pure nonsense. But, they also know that it's an effective money raising tactic. When Democrats and Republicans clash over an issue, all too frequently, it's really about riling up people for donations, rather than any actual policy agenda. And it appears it's not going away any time soon. Despite multiple hearings that have only served to make Congress look incredibly hypocritical and/or ignorant, House Majority Leader Kevin McCarthy is now joining the fray, saying he wants Twitter CEO Jack Dorsey to testify about Twitter's made up censoring of conservative voices.And while I'm not sure whether or not some other members of Congress grandstanding on this issue actually understand what's going on, McCarthy of all people should know better. He actually has at least some history of understanding tech issues better than many of his colleagues. But, apparently, these days, the way to raise money is to make blatantly false or misleading statements against tech companies, and thus, McCarthy feels the need to join in on this silly dog and pony show. I'm sure we'll get another stupid hearing out of it that demonstrates to anyone just how clueless Congress is, but I guess if it gets a bunch of ignorant people to kick in to his re-election campaign, that's all good, right?

Earlier this week, Facebook announced that it had uncovered a new wave of disinformation attacks ahead of the 2018 elections. To hear Facebook tell it, the new attacks pretty closely mirror Russia's Internet Research Agency attacks during the 2016 election. As in, the culprits are trying to sow distrust and amplify partisan divisions on both sides of the aisle by creating fake organizations, fake people, fake news, and rockin' memes. How much that actually accomplishes is the matter of some debate, but it's also pretty clear we don't yet understand how deep this rabbit hole really goes.According to Facebook, this latest attack on the nation's gullible shows signs of evolution from the more ham-fisted attacks seen during the 2016 election. And while there's no hard link to Russia yet, Facebook claims there are some connections between Russian Internet Research Agency "troll farm" accounts and this new wave of disinformation:

For years, we've noted that the major record labels have been drooling over the idea that the DMCA might allow them to force ISPs to kick people entirely off the internet based on mere accusations of piracy. This is problematic for all sorts of reasons (as you might imagine). However, the record labels feared testing this idea in court, because it might not turn out the way they wanted it to. However, as we covered on Techdirt, a few years back, music publisher BMG, with the assistance of copyright trolling operation Rights Corp. went after ISP Cox, claiming that it had failed to kick people off under the DMCA.That case was an utter mess, not helped at all by the fact that it was handled by Judge Liam O'Grady, who flat out mocked the idea that the internet was important, and made it clear he didn't see any issue at all with banning people from the internet. Here's how he responded to an attempt by the EFF to file an amicus brief pointing out the problems with kicking people off the internet:

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